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Some Dangerous Conditions Are Just Plain Obvious

The good news is that a California Appellate Court has upheld a grant of summary judgment (essentially, a dismissal) in favor of a real estate company that was being sued for negligence. (Jacques Jacobs et al. v. Coldwell Banker, Second Appellate District Court of Appeal, July 25, 2017).

The not-so-good news is that the opinion has not been certified for publication.

We'll discuss both.

Coldwell Banker had listed a vacant, bank-owned property. The backyard had an empty swimming pool with a diving board. According to the court record, Dianne Garnett, the agent, conducted a visual inspection of the property.

"After examining each room in the house, Garnett spent 20 to 30 minutes inspecting the backyard, including the diving board. She did not observe any breaks, cracks or other visible damage in the diving board. The only dangerous condition she observed was the empty swimming pool.

"Garnett retained Clearflo Pools (Clearflo) to inspect the swimming pool and related equipment and to provide her with a report detailing any necessary repairs. Clearflo's post-inspection report did not identify any concerns about the diving board.

"Before the property was viewed by any potential buyers, Garnett prepared an MLS listing for the property. The listing stated: ‘Please use CAUTION around the empty pool.'"

The record goes on to say that Mr. and Mrs. Jacobs were interested in purchasing the property. On August 30, 2014, they met with their agent to view the property. "Jacques [Mr. Jacobs], a licensed contractor who regularly performs tile work in and around swimming pools, noticed that the backyard swimming pool was empty. Jacques knew he should stay away from the edge of the empty pool because ‘it would hurt if [he] fell in.'

"Jacques wanted to see over the fence to assess whether someone from the adjacent road could jump over the fence into the backyard. To get a better view, he stood on the base of the diving board. After standing on the diving board for 10 to 30 seconds, Jacques felt the board break loose from its base. The board slid forward and Jacques fell into the empty swimming pool, sustaining serious injuries."

Naturally, the Jacobs sued Coldwell Banker. They alleged negligence and argued, among other things, that Coldwell Banker had failed in its duty to warn Mr. Jacobs that the empty pool was a dangerous condition.

The trial court granted Coldwell Banker its motion for summary judgment, and the case was appealed. The Appellate Court spent some time discussing the issue of Coldwell Banker's duty, or the lack thereof, to protect Mr. Jacobs from "the open and obvious danger of the empty pool…"

The court noted that whether or not a duty exists is determined by a variety of factors, among them "... the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty."

The court then turned to a variety of earlier cases. It noted this: "Foreseeability of harm is typically absent when a dangerous condition is open and obvious... Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition… In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious' and take action to avoid the dangerous condition." [my emphasis]

Next, it pointed out an exception to that rule: "... obviousness will not negate a duty of care when it is foreseeable that because of necessity or other circumstances, a person may choose to encounter the condition." Examples were given, such as a case where walking across a narrow plank was necessitated by a job requirement that a person had to access a faucet on the other side.

In this case, though, there was no such necessity. "Although [Mr. Jacobs] wished to look over the fence, he was not compelled to do so… It was not reasonably foreseeable that he or anyone else would use the diving board for that purpose." "Accordingly," the Appellate Court said, "we agree with the trial court's conclusion that ‘the undisputed facts indicate that it was not reasonably foreseeable that [Mr. Jacobs] would expose himself to the risks associated with the empty pool, as he was neither required nor invited to do so'."

That this opinion was not certified for publication means that it cannot be cited or relied upon in other cases. There is, however, a procedure for requesting that the opinion be published. You can bet that a variety of real estate interests will be making that request.

Bob Hunt is a former director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at scbhunt@aol.com.